1.7.43 South Dakota

Intestacy

General Definition

Any part of the decedent's estate not effectively disposed of by will or otherwise. Sec. 29A-2-101.

Order of Distribution

The intestate share of a decedent's surviving spouse is the entire intestate estate if:

1. No descendant of the decedent survives the decedent; or
   
2. All of the decedent's surviving descendants are also descendants of the surviving spouse. Sec. 29A-2-102(1).
   

The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse. Sec. 29A-2-102(2).

Any part of the intestate estate not passing to the decedent's surviving spouse, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:

1. To the decedent's descendants by representation;
2. If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;
3. If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
4. If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or by representation to the descendants of the decedent's paternal grandparents or either of them if both are deceased; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half. Sec. 29A-2-103.

If no person is entitled to inherit under South Dakota law the estate shall escheat to the State. Sec. 29A-2-105.

Will Qualifications

Common Law or Community Property

South Dakota is a common law property state.

Capacity

An individual 18 or more years of age who is of sound mind may make a will. Sec. 29A-2-501.

Drafting

A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. Sec. 29A-2-502(a).

If a will is not valid as a holographic will, it must meet the following criteria to be valid:

1. In writing;
2. Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and
3. Signed in the conscious presence of the testator by two or more individuals who, in the conscious presence of the testator, witnessed either the signing of the will or the testator's acknowledgment of that signature. Sec. 29A-2-502(b).

Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. Sec. 29A-2-502(c).

An individual generally competent to be a witness may act as a witness to a will. The signing of a will by an interested witness does not invalidate the will or any provision of it. Sec. 29A-2-505.

Beneficiaries

A beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.

Modifications

A will or any part thereof is revoked:

1. By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or
2. By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it, whether or not the revocatory act touched any of the words on the will. Sec. 29A-2-507(a).

If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will. Sec. 29A-2-507(b).

The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death. Sec. 29A-2-507(c).

The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent. Sec. 29A-2-507(d).

Probate Process

Naming of Personal Representative

To acquire the powers and undertake the duties and liabilities of a personal representative of a decedent, a person must be appointed by order of the court or clerk, qualify and be issued letters. Administration of an estate is commenced by the issuance of letters. Sec. 29A-3-103.

No person is qualified to serve as a personal representative who is:

1. Under the age of eighteen;
2. A person whom the court finds unsuitable in formal proceedings; or
3. A bank or trust company not qualified to do trust business or exercise trust powers in this state. Sec. 29A-3-203(f).

Persons who are not disqualified have priority for appointment in the following order:

1. The person with priority as determined by a probated will, including a person nominated by a power conferred in a will;
2. The surviving spouse of the decedent who is a devisee of the decedent;
3. Other devisees of the decedent;
4. The surviving spouse of the decedent;
5. Other heirs of the decedent;
6. 45 days after the death of the decedent, any other qualified person. Sec. 29A-3-203(a).

A person entitled to letters may nominate a qualified person to have the same priority to act as personal representative as the person nominating. Any person may renounce the right to nominate or to an appointment by appropriate writing filed with the court. When two or more persons share a priority, those of them who do not renounce must concur in nominating another to act for them, or in applying for appointment in informal proceedings. Sec. 29A-3-203(c).

Submission of Will

To be effective to prove the transfer of any property or to nominate a personal representative, a will shall be declared to be valid by an order of informal probate by the clerk of court, or an adjudication of probate by the court. Sec. 29A-3-102.

Notifications

Not later than fourteen days after appointment, every personal representative must give information of the appointment to the heirs and devisees, including, if there has been no formal testacy proceeding and if the personal representative was appointed on the assumption that the decedent died intestate, the devisees in any unprobated will mentioned in the application for appointment of a personal representative. Sec. 29A-3-705(a).

The information must be delivered or sent by ordinary mail to each of the heirs and devisees whose address is reasonably available to the personal representative. The duty does not extend to require information to persons who have been adjudicated in a prior formal testacy proceeding to have no interest in the estate. The information must include the name and address of the personal representative, indicate that it is being sent to persons who have or may have some interest in the estate being administered, indicate whether bond has been filed, describe the court where papers relating to the estate are on file, and shall be accompanied by a copy of the will admitted to probate, if any. The information must state that the estate is being administered by the personal representative under the South Dakota Probate Code without supervision by the court but that recipients are entitled to information regarding the administration from the personal representative, to file a demand for notice and to petition the court in any matter relating to the estate, including distribution of assets and expenses of administration. Sec. 29A-3-705(b).

Inventory

Within six months after appointment, or nine months after the decedent's death, whichever is later, a personal representative must prepare an inventory of property owned by the decedent at the time of death, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item. Sec. 29A-3-706.

Homestead, Exempt Property, Elective Share and the Family Allowance

The surviving spouse and/or minor children are entitled to a homestead allowance. The exempt property and homestead allowances are in addition to any share passing to the surviving spouse or children by the decedent's will, by intestate succession, or by way of elective share. Exempt property and homestead allowance have priority over all claims against the estate. Sec. 29A-2-402.

The surviving spouse of a decedent who dies domiciled in South Dakota has a right of election to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other. The share is determined in accordance to the schedule in Sec. 29A-2-202.

In addition to the homestead allowance and exempt property, the decedent's surviving spouse and minor children are entitled to a reasonable family allowance in money out of the estate for their maintenance during the period of administration. The personal representative may determine the family allowance in a lump sum not exceeding $18,000 or in installments not exceeding $1,500 per month for one year. Sec. 29A-2-403.

Debts and Distributions

A personal representative upon appointment may publish a notice to creditors once a week for three successive weeks in a legal newspaper in the county in which the proceeding is pending giving the personal representative's name and address and notifying creditors of the decedent to present their claims within four months after the date of the first publication of the notice or the claim may be barred. Sec. 29A-3-801(a).

A personal representative must give written notice by mail or other delivery to a creditor of the decedent, who is either known to or reasonably ascertainable by the personal representative, informing the creditor to present the claim within four months after the date of the personal representative's appointment, or within sixty days after the mailing or other delivery of the written notice, whichever is later, or be forever barred. Sec. 29A-3-801(b).

A personal representative need not give written notice to a creditor if any of the following apply:

1. The creditor has presented a claim against the estate;
2. The creditor has been paid in full;
3. The creditor was neither known to nor reasonably ascertainable by the personal representative within four months after the personal representative's appointment. Sec. 29A-3-801(c).

If the applicable assets of the estate are insufficient to pay all claims in full, the personal representative shall make payment in the following order:

1. Costs and expenses of administration;
2. Reasonable funeral expenses;
3. Debts and taxes with preference under federal law;
4. Debts and taxes with preference under other laws of this state;
5. All other claims. Sec. 29A-3-805(a)

No preference will be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due. Sec. 29A-3-805(b).

Estate/Inheritance Tax

South Dakota's estate tax., codified at Sec. 10-40A-3 was repealed.

Income Tax Charitable Deductions and/or Credits

No personal income tax in South Dakota.